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Ohio BWC: I’ve got injured, quit my job, and move to another state do I still get compensation?

Klein v. Precision Excavating:

The short answer is no. In Klein the injured worker was certified temporarily and totally disabled by his doctor. Prior to his work injury he was thinking about quitting and moving to Florida. Unfortunately life likes to throw curve balls. And he got injured at work. A couple of weeks after his work injury, he in fact moved to Florida. The injured worker requested temporary total compensation. The Industrial Commission award temporary total only up the date right before he left to Florida.

Injured worker appealled to the 10th District Court of Appeals. The Court of Appeals said “hey if you had a work injury and were unable to work at the time you moved, then you get money.” Employer appealed to the Ohio Supreme Court. Ohio Supreme Court said, “nah, even though case law says that you should get money, we’re saying you shouldn’t so you don’t get money. Hey man, even though you were unable to work at the time you moved, and maybe you are still injured has no bearing to why you are no longer worker at Precision Excavating. You VOLUNTARILY ABANDONED the workforce. Your leaving the job had no connection to the work injury”

Here’s the thing, it is true. The injured worker was planning on leaving prior to his work injury. But he got injured. Case law that was previously followed basically said that if you were unable to do the essential functions of your job at the time of the event that separated you from your job then you cannot be found to have VOLUNTARILY ABDANDONED your job because you had already INVOLUNTARILY ABANDONED your job.

Anyways. Not the case now. So if  you quit or resign after a work injury, even though you are certified temporarily and totally disabled, you may be found to have voluntarily abandoned your job and not be entitled to compensation.

Happy Halloween!!

Halloween is one of my favorite holidays. Its fun to decorate the pumpkins and the yard. There are visits to pumpkin patches, Halloween costume pop-up stores, and haunted houses. I remember when I was living in the Bay Area there was a small town called Half-Moon Bay. Half-Moon Bay was a small fishing town south of San Francisco. There was also a lot of little farms in that area as well. Each October there would be the Half-Moon Bay Pumpkin Festival. It was fun to take my son at the time when he was a toddler.

Unlike California, Halloween in Ohio tends to mark the transition from mild Fall into colder weather(granted in the Bay Area it gets cooler, but 50-60 in December and January doesn’t compare to Ohio in December and January). Sometimes Halloween can be warm, sometimes it can be unpleasant and chilly. Irregardless the kids still have to get out there to get that candy!!! I believe this will be the last Halloween my son trick-or-treats. Its weird how fast times goes. I remember his first couple of Halloweens when he was a baby and had no concept of what trick-or-treating was.

Then when he became a toddler, at first he would be suspicious of these strangers handing out candy. Later he would enthusiastically run up driveways and ring the doorbell. Now he’s trick or treating with his friends. Leaving me at home to cry in my soup (or work on hearings). The great thing about Halloween, no matter how young or old, its still fun, and there are still things you can do to participate and enjoy Halloween.

Landlord Duty Of Care

Anyways, this is a lawfirm’s website so each post has to veer back around to some legal concept. So what legal issue or concept is implicated by Halloween? Well, here goes, if you rent your apartment or home, then you landlord owes you a duty of care to maintain the property so as to avoid injuries to both yourself and your guests, including little kids who are trick-or-treating.

Therefore if there is something that needs repaired at your home or apartment, like a loose handrail, or a rotting front porch, let your landlord know so he can fix it. If he does not and you or your guests sustain an injury, you may be entitled to compensation and/or payment of your medical bills.

As always if you or your family have suffered a serious injury, please call an attorney at Malek & Malek. We have been protecting families since 1972.

Serious Injury Due To Inadequate Security

Chicago: Two Homicides This Past Weekend

This weekend I drove up to Chicago, Illinois, and more specifically Evanston in order to attend an academic award ceremony for my son. If you are familiar with Evanston, Illinois at all its at the northern tip of Chicago. To get there you can drive up Lake Shore Drive onto Sheridan, pass Rogers Park, and then you hit Evanston.

I had lived in Rogers Park while I had been working at game company in downtown Chicago. So I decided to take a walk around my old neighborhood while I was in town. My old apartment was on this beach called Loyola Beach. I walked around the beach and around my old apartment on Friday and Saturday.

Lo and behold I get a message from my friend (who happens to now live in Rogers Park) that there were two murders in Rogers Park this past weekend. Yikes, one of the murders took place in front of my old apartment, in the same place I had walked on Friday and Saturday. Kinda eerie. Appears that the murders were completely random. Very unsettling.

my Chicago apartment:

Serious Injury Due To Inadequate Security

Why do I bring this up beyond the fact that it was a crazy event that happened this weekend? Because if you or your family is involved in a serious injury at an apartment complex, grocery store, department store, and/or parking lots of those businesses, then you may have a cause of action against the apartment complex and or businesses. These places have a duty to protect their residents and/or visitors from serious bodily harm by providing adequate security. Adequate security can come in the form of proper lighting, security cameras, and onsite security personnel among other things.

In the occurrence you are attacked or your family member attacked or god forbid murdered at an apartment complex or business, then you would be entitled to sue those entities. In addition you would have a Victims of Crime Claim. Victims of Crime will pay for medical bills and lost wages.

Hopefully you never do experience serious bodily injury due to an attack or assault at an apartment complex, grocery store, department store, and/or parking lots of those businesses. If you do please contact Jim or Hillary at Malek & Malek to help you and your family get all the compensation you and your family are entitled to.

Chicago from Loyola Beach at Rogers Park (way off in the distance)


Doug Malek: Top 40 Under 40

The National Trial Lawyers

Doug Malek has been selected by the National Trial Lawyers to be a member of the Top 40 Trial Attorneys Under 40.

Doug specializes in the area of Ohio Workers Compensation law. A significant portion of his time is spent arguing on behalf of injured workers in administrative hearings before the Ohio Industrial Commission. Not everything always goes how it is supposed to during the hearing. When this happens the next step is to file a complaint on behalf of an injured worker before the Court Of Common Pleas.

What does that mean for the Injured Worker? Witness depositions, doctor depositions, drafting motions, and ultimately a jury trial. Doug’s focus, intensity, intelligence, and ability to connect with the jury has lead him to many successful results before the bench.

Doug is humble, so I will say it, he does a great job as an attorney and he has earned this recognition from the National Trial Lawyers.

Thank you for allowing Doug and the rest of attorneys at Malek and Malek to represent you for your work injury and other serious injuries – Kip

Ohio BWC: I just got injured what do I do now?

Essentially in the most simplest form the process is as follows:

You Get Injured at Work

Let your supervisor or manager know you’ve got injured

You seek medical treatment, either ER, urgent care, or primary care physician. Hopefully you have sought treatment right away. Sooner you seek treatment and document the injury, the better.

That provider has you fill out a First Report of Injury Form, FROI-1, they fill out their section.

The FROI-I is submitted to the BWC, this starts the claim

The BWC does an initial investigation, gathers medical, either allows or denies the claim

BWC issues an order allowing or denying the claim, if allowed, employer appeals, if denied, you appeal

You must appeal the order within 14 days

Issue of the claim allowance is scheduled for a district level hearing before the Ohio Industrial Commission

You receive a hearing notice indicating date, time, address of the hearing

You and your attorney argue for the allowance of the claim, and request compensation if substantiated

Hearing Officer issues a DHO Order. If it goes your way, employer appeals, and vice versa.

DHO Order must be appealed within 14 days.

Then get second level hearing before a different hearing officer, called a Staff Hearing Officer, issues an SHO Order

That’s the basics of the beginning of the claim process. Once the claim is allowed, opens the door for treatment for the ALLOWED conditions only, and compensation substantiated by the ALLOWED conditions only.

As always I recommend you seek out an attorney. The Ohio BWC Process can be cumbersome and confusing, and it is far too easy to make a mistake if you have never dealt with the system before.

I’ve made a youtube video explaining the process in significantly more detail:


Ohio BWC: Work Injury: Dog Attack

When most folks think of dog bites, dog attacks they tend to focus on one legal cause of action, suing the owner or harborer of the dog for the physical injury that dog has caused. But what if you get attack or bit by a dog while working, how many causes of action would you have?

The answer may be two. The traditional lawsuit you would file against the owner, harborer of the dog; and a worker’s compensation claim against your employer.

Problem of Collectibility

I do not wish that anyone is hurt, either on the job or otherwise, but you may have a better legal result or claim if you are bit or attacked during the course of employment. Why? Collectibility. A problem that folks sometimes encounter with dog bite cases is that the person who owns the dog or is legally responsible for the dog has absolutely no assets. So you might legally have won the case, and the court may have entered a six-figure judgment against the dog owner, but if the dog owner has no money, then he/she has no money to collect. Why is that person allowed to own a dangerous animal when he cannot financially pay for the harm the dangerous animal causes? Good question, unfortunately its an all too common problem in Ohio.

Dog Attack During Course of Employment

Suppose you deliver packages for UPS or are a pizza delivery driver. You pull up to a house/apartment, walk up to the door, ring the doorbell, owner opens the door, dog jumps out bites you on the leg. In this case you would fall into the duel category situation, two legal causes of action: dog bite claim, and worker’s comp claim.

Under worker’s comp, as long as your claim was allowed, you may be entitled to have your medical bills paid for, and compensation paid for during the time you are physically unable to work. This claim would be assessed against your employer’s worker’s comp coverage.

Now if the dog bite owner was collectible, and you either prevailed at trial or settled the case, you would probably have to subrogate the BWC in terms of the medical bills that had already been paid out.

Goes Without Saying . . .

Because we are talking about dog bites, I present you with pug in a drawer. So cute, Cheers, Kip


Ohio BWC: Work Injury: Slip and Falls At Work

When I lived around San Francisco I’d take my son to this place in Half Moon Bay called the Fitzgerald Marine Reserve. It was my favorite place to visit because at low tide you could explore tide pools. I’d walk out there with my toddler son at the time and marvel at all the crazy creatures we could find: star fish, sea anemones, octupus, shore crab, chitons, nudibranch (basically weird colorful sea slugs), etc. One big hazard that existed was that is was slippery as all get out; fortunately neither my son or I slipped and fell.

Now I live in Ohio; what does it do in the winter in Ohio? It gets cold, it snows, ice forms, roads and side walks get slippery. Inevitably slips and falls happen. So the question you may have is: “if I slip at work is this a workers comp injury?”


First did it happen at work or an area under the control of your employer. If you slipped on ice in your employer’s parking lot, probably a work injury. More difficult scenario, employer doesn’t own the parking lot. Again how much control does your employer have over the lot. This scenario is ripe for arguments pro/con at an Industrial Commission hearing. Probably comes down to which hearing officer you get whether the parking lot is construed as under the control of your employer. If its found that the parking lot was not under the control of your employer, then it would not be a work injury. In which case, you might be able to file a personal injury complaint against the owners of the parking lot.

Second, did you slip and fall on ice, or did you just fall apropos of nothing. If you just fall without any exterior influence, this would be an idiopathic injury, and as such would unfortunately not be a work injury.

The next question that people have about slips and falls at work are, “my employer is negligent, he should have shoveled or salted the parking lot/side walk.” Might be negligence, but in the worker’s comp world basic run of the mill negligence is not considered. This works both ways, I’ll got to hearings and the employer will say something like, “Joe Blow was doing such and such wrong and that’s why he got hurt.” Fortunately Joe Blow will still have a work injury claim even if he was doing such and such task wrong/incorrectly/negligently.


Anyways, back to me and why I wrote this article. I like to cut across the grass in front of our office to go to and from the building. As I was leaving to go home I cut across the grass, slipped and landed on my side. So would I have a work injury:

1.) Was the injury site owned or under control of my employer? Yeah, the little evil grass hill is owned by Malek and Malek

2.) Was it an idiopathic fall or fall due to external means? Now my brother would say I had an idiot pathetic injury, but I fell due to slipping on the grass. So the fall was due to external means.

3.) Did I suffer an injury? No, I killed my shirt and pants, but thankfully I did not suffer an injury.


Please be safe these snowy and icey days. Watch where step. We get clients who have sustained serious head injuries from bonk their head on the ground. Its no joke when you slip and fall. If you have a question, concern, or comment please call or email the Work Injury Attorneys at Malek & Malek. We’ll try to help you and set you on the right path. Cheers, Kip Malek

Malek and Malek Wishes Every Family A Safe and Happy Holiday!

Hi Folks,

Please have a safe and happy holiday season. Pause and take a moment and be thankful for you and your family. Pray for those injured workers and their families who may be experiencing hardship because their husband or wife has had a work injury. I pray that you do not have a work injury, but if you do, that you recover and are able to return to gainful employment.

Sometimes its easy to lose sight of the fact that there are many folks in much more unfortunate circumstances than ourselves. And some of us are experiencing our own physical, emotional and/or financial hardship.

Malek and Malek has been proud to represent the Injured and Their Families in 2017 and we will continue the fight in 2018. Cheers, Kip


Fight At Work: Workers Comp Injury?


With Thanksgiving comes Black Friday. Over this past weekend I was watching these clips on Youtube of Black Friday Madness. One in particular was particularly brutal. It depicts what appears to be a shopper slamming a Kmart employee into shelving. I believe the Kmart employee broke his hip in the incident.


I thought to myself is this a compensable work injury?

  1. happened at work? yes, assuming the Kmart vest wearing man was working at Kmart and not some weirdo wearing a Kmart vest while shopping at Walmart.
  2. Not an idiopathic injury? No, idiopathic essentially means you are walking down a hall and you pass out/fall onto the ground for no apparent reason. You didn’t trip over a rug, or something on the ground. Clearly here the kmart worker was body slammed by some crazy shopper.
  3. Is there an exception that applies that would make this not a compensable work injury: not Horseplay, not frolic/detour, going/coming rule doesn’t apply, probably not intoxicated due to drugs/alcohol, obviously Fight Exception may apply.

In the Ohio Workers Comp, Work Injury world if you get injured while fighting on the job, your injury may not be a compensable injury. That is you may not have a workers comp claim. The rule is as follows:


Work Injuries due to fights at work are compensable injuries as long as

  1. the injured worker did not start the altercation or start the fight.
  2. the basis of the fight must centers around the job. There’s room for argument with this particular factor, particular since the lines between work matters and personal matters can be blurry. A quick example: not job related you get in a fight because you co-worker called your dog a smelly mutt. Job related, your co-worker is jealous you got a pay raise and he didn’t and he gets into your face, insults your dignity, you respond and then he hits you.

Back to our Kmart body slam incident. I’m thinking this situation is more analogous to circumstances of our clients who are employed in specialized health care and incarceration environments. For instance if you get attacked by a developmentally disabled patient, that’s not a fight perse but an unprovoked attacked. Likewise if you working in a jail and are ambushed by an inmate.

I’d argue that the Kmart employee, though possibly a bit over-zealously, was working for the benefit of Kmart by executing Kmart policies against something that the customer was doing. Therefore the Kmart employees broken hip should be a compensable work claim.


Bottomline folks, there’s nothing wrong with doing your best or trying to your best on the job, but at the end of the day a job is just a job, please don’t take unnecessary risks. I hope the Kmart worker is getting all the necessary treatment he is due.

Hopefully you do not have a work injury, but if you do and have questions or concerns please give the attorneys at the Malek Law Firm a call/email. Have a nice and calm December. Cheers, Kip



We’re firmly in the Holiday Season. Black Friday has come and passed, but there’s still a month to go of Christmas madness. Mad rush to shop for things we and our children don’t need. This is also a time for seasonal temp work. Retail stores, warehouse jobs, fulfillment centers hire extra folks to deal with all the holiday business.

While I was in college, I worked at Cheryl’s Cookies in Westerville, Ohio during a holiday break . Basically you packaged boxes of cookies for 8-10 hours a day. It was pretty decent work, they had free “broken” cookies in the break room, and I made a little extra cash.

I didn’t get injured at Cheryl’s Cookies, but what if I had, would I have a work claim even though my intention was only to work there for two-three weeks? Yeah absolutely. Technically you would have a claim even if you worked only for a moment, but for the sake of clarity I’ll run down a brief list of examples from hard (“might not have a claim”) to easy (“probably have a claim”).


Hard Case

You get hired to work for the month of December at Acme Warehouse. You haven’t actually started doing any “work” for Acme, rather you are pulling into the Acme Warehouse parking lot. Some third shift worker, exhausted from picking Acme products all night, pulls out of his parking lot like Steve McQueen from Bullitt. He smashes into your car. You suffer a lumbar strain. Do you have a claim? Employer’s attorney will probably argue that you hadn’t started working and therefore not a compensable claim, our argument would be that the only reason you are in the parking lot is for the benefit of the employer, therefore compensable claim.


Second example, first day on the job, you park in Acme’s parking lot, no problems. You clock in, on the way to your first pick of the first day of the job you trip over a palette land on your back, suffer a back sprain and hip sprain. Compensable injury? Barring any other facts, sure. Doesn’t matter that you had only worked there for all of ten minutes. You have a work injury.

Frankly I could continue on, but barring some other factor, the result would be the same.


Now the other argument the employer’s attorney might bring up is:

Hey This Person is a Seasonal Employee, They May Have a Claim But they Shouldn’t Be Entitled to Compensation.

Our position would be that sure this is seasonal work, but now because of the work injury the injured worker can’t get another job therefore he/she should be entitled to compensation. If the opposite were true, i.e. the employer was only required to pay compensation for the theoretical duration of the seasonal employment, this would incentivize employers to purposefully employ folks for a limited duration of time. Reduce their risk, with the knock on effect of employers paying less attention to job safety. Traditionally the Ohio legislature has not been in the habit of incentivizing unsafe work environments.

SO Seasonal Temporary Workers May Be Entitled to Medical Benefits and Compensation Despite only working/intending to work for a limited amount of time . . . and that’s the bottom line! ( as delivered by Stone Cold Steve Austin ).

I wish you a nice December, and if you are working a seasonal job I wish you get all the overtime work you can manage. Hopefully everyone remains safe and injury free.Cheers, Kip